*1 has While, admittedly, bankruptcy court power in addition priorities to create statutory pro granted by specific to those
visions, Act, 64, Bankruptcy 11 U.S.C.A. § Bell & Tel. Co. v. Tel. Southern Cir., Caldwell, been F.2d
repeatedly -bankruptcycourt has held that a of creditors power postpone the -claims which, guilty of conduct
who have been ordinary equity, would
under the rules equal inequitable them to share
make it
ly creditors the distribution with other Imperial Pager Sampsell
of dividends. v. Corp., & 61 S.Ct. Color 1293, rehearing denied 313 U.S.
85 L.Ed. 1552; 1107, 85 Bird & 61 S.Ct. Tobin, Cir., Corp. F.2d v.
Sons Sales 654; Hard A.L.R. In re Bowman 792; Co., Cir., F.2d
ware & Electric Stores, D.C., Community Handy-Andy
In re 97; equities F.Supp. 100A.L.R. appellants. decidedly against are
here appellants’ entire
Considering course throughout proceedings,
conduct these we way
are in no moved to search an ex
ception to, any way or in to overturn in favor,
appellants’ what think we
applicable law of the case. judgment of the District Court is
affirmed.
Affirmed. UNITED STATES.
CHANDLER
No. 4296. Appeals Court First Circuit. 3, 1948.
Dec. 28, 1949. Certiorari Denied
Writ of
Feb.
See
See also Boston, Park, Mass. Edward C. Philip Grogan, F. (Claude B. Cross and Boston, brief), for Mass., on both of appellant. Asst, to Wiener, Sp. Bernays
Frederick McCarthy, S. Atty. (William U. Gen. T. Quinn, Boston, Mass., Atty., T. Vincent Asst, Wolfe, Sp. Gen., Atty. Tom Asst. De McCarthy, Atty. Gen., Asst. Gerald J. Boston, Mass., and Bar- Atty., U. S. Coyne, Department of Atty., B. tholomew C., brief), Washington, D. on Justice, of appellee. for MAGRUDER, Judge, and Chief Before special and assignment) (by GOODRICH WOODBURY, Judges. Circuit MAGRUDER, Judge. Chief Douglas Chandler under sentence of imprisonment $10,000, a fine life and jury conviction on an indictment crime charging the of treason ’ predi- charge The United States. broadcasting upon defendant’s radio cated during within the German activities Reich employee II as World War of the Ger- Company, an Broadcasting Radio man agency the German Government Ministry jurisdiction of Public Propaganda. Enlightenment and The appeal on wide points raised cover range. We have much aided been industry thoroughness of Government court-appointed counsel counsel in their the defendant researches case, distinguished ability respective they have their marshaled arguments. great was tried with case by Judge Ford, patience care and (alien identity through him cover- the interven- card) memoranda record contains family important rulings. Consul, tion sus- and his ing more We German followed in another He volunteered tain the conviction. month. Ministry, Propoganda his services Summaky. Factual arrangements made for him to prepare them for commentaries and record facts, jury as the were warranted broadcast to the United on a salaried them, may as fol- finding be summarized April, basis. His broadcasts commencedin Chicago, Illi- lows : Chandler was born adopted broadcast,, He 1941. in his first nois, always been citizen throughout, plume and retained nom de in this of the United He married States. “Paul (though Revere”1 his- revealed daughters country born here. had two identity subsequent true broadcasts). journalism He tried his hand time The introductory song theme to his broad- enterprises. Septem- and various other played casts was Doodle” “Yankee ber, 1931, Eu- family he and his moved to accompanied by galloping flute sound rope, he remained back where until horses’ hoofs. six After months this- Prior to work he took a leave absence. France, 1941he lived time to time *5 Austria, Germany, Yugoslavia, Italy, and upon Japanese came Then attack extensively. and From 1936 to traveled Though recognized Pearl he Harbor. the outbreak war various he executed “Germany through pact Japan with was preparation commissions for the illus- technically to issue forced its declaration magazine. trated articles American for an war”, regarded change he this in the sit- Germany uation between the United years developed Over the Chandler had only technicality. Ameri- Other outlook, his fierce emo- anti-Jewish repatriated cans Berlin, were from but by tions on that theme were accentuated stay. Chandler chose to personal certain setbacks he attribut- malignant ed to interference. He Jewish January, February, In he- believe, profess believe, came to toor in arrangements resumption made for the existence of a sinister world-wide activity Jew- his as broadcaster. He executed conspiracy. Naturally ish he found “Reichs-Radio-Corp.- a contract with Germany climate of Nazi con- anti-Jewish Station”, pro- German Short Wave genial. While Germany before the war in Douglas vided in Article I that “Mr. Hoffman, his was cultivated one employed interest Chandler will be as a commenta- Depart- in the attache German Press A. tor U. newsroom. His em- S. ment, serving foreign as contact man for ployment necessary by the war condi- journalists. favorably impressed He was tions; means, on account of the draft- Germany with what sawhe in and came to permanent employees ing and the addi- regard regime the Nazi as the bulwark of radio, respectively.” tional war tasks Western civilization what he stipulated compensa- The [Italics added.] thought be the men- per Jewish-Bolshevist was 1000 tion Reichsmarks month. ace. Though the defendant was understood responsible only Yugoslavia left he the German came Short Agency, Florence. Wave bookkeeping There he reasons he conceived idea broadcasting States, time his views to the at the same entered into two other contracts, way warning against “Foreign-Language- in one with involvement European Service-Press-Corp.”, salary war. at a American Consul of 750 Florence, month, per in urging at this time Reichmarks who another with Americans to return to the “Anti-Komintern” “Anti-Semi- did not authorize Action” Chandler to under which he was to travel to tic receive Germany month, passport. regular American “for his How- 750 Reichmarks a ever, foreign-language get prop- able to to Berlin collaboration February, 1941, Fremdenpass Anti-Komintern, aganda on German and the guerre”. broadcasts, plume In one of his de as his “nom he referred to this nom de were foreign broadcasts “The German This Action, respectively.”
Anti-Semitic extensively means of per use of as a made marks compensation aggregate psychological warfare, done as it was paid highest com- Chandler the month made support war every country, the German Short Zone of the mentator in U. S. A. peoples disunity in by creating other Broad- effort Radio the German Wave Station by. up morale, splitting undermining the Chief Company. superior, the casting His parties, different people different Zone, than the received less U. A. S. parties, political parties, social and radical half this amount: psycho- doing this so that the land who is con- under these broadcast Defendant objects. war logical aim warfare their a week uninter- three times tracts two or too, Germany, we And so it was done end ruptedly February, propaganda these made an extensive use of stopped for year. He then July of that psychological warfare.” as a means of following death about two months Ministry, wife, same Propaganda on the but he resumed his first head Hitler, Goebbels, the routine in October. After one of the direction basis Dr. commentators, harped some conferences of the themes to principal down the laid February, 1943, had a conversa- propaganda upon time in radio in the German Editor for Wagner, psychological the News warfare. tion with furtherance of expressed Wagner lack his They S. A. Zone. Bolshevism as No. U. property; theme and anti- Christianity private interest in the anti-Semitic authenticity of the so-called support disbelief Bolshevism Semitism—the Chand- stress, far Jewry”, “Protocols of Elders of Zion”. so “international reported Wagner Gestapo as one concerned, ler the United States was *6 suspect. loyalty Reich was supposed govern- whose dominance of the in Jews by Later, upon finance, radio, films, with this action and being taxed in ment and and Wagner: opin- “You Wagner, public agencies influencing Chandler said to for other friends”, my but ion; best “the great have been one of achievements Reich in Reich, whole, of the are legislation interests of the as con- in field of social my feelings.” personal Chand- of higher than with the backwardness trasted May, countries; suspended in air ler was from the the invincible Anglo-Saxon Super- Reich; of the military power at the solicitation but moral of the and political he the Short Wave Station England’s intendent of de- economic and September, For in work power. resumed his cline as a world recordings that he made his time some after daily his conferences with Goebbels held recordings Vienna and the were in gave in- subordinates, at which he his top Wave transmitter out- German Short how to handle the news structions toas mag- on there Berlin and re-recorded side currently points he wanted as to what broadcasting. tape There was a netic propa- line along the basic stressed interruption spring of in the two-month in- just ganda themes These mentioned. October, illness. to Chandler’s due through passed were on down structions Bavaria, Durach, after he moved Chandler staff conferences.. a series of Munich, recordings he made his in English-speaking broadcasters with other February January or until and so continued daily conferences regularly attended stopped There- good. he when Zone, U. at by S. held the chief A. expressed willingness to resume after he propaganda directives which the standard Berlin to make come to but he refused to relayed daily were directives well as the Superintendent recordings as the discussed, given instructions were arid him to do. Station desiredi Short Wave with reference commentators to the various subjects. oper- commentators particular in. objective mis- clearly left doubt as to the war broadcasts were in short-wave ation Agency. Wagner, Wave record, mat- Short is indeed a sion appears in Zone, Winkelnkemp- the U. A. re- Editor of S. knowledge. News common ter conferences, S. Zone ferring to these U. A. the German- General er, the Director testified: Reich-Radio-Corp., as follows: testified frequently up dur- propaganda picked monitoring at the sta- said that “We German chiefly to create tion he the Federal Com- war was to used Communications ing the England, Spring, Allies, Maryland. Ameri- mission To disunity among the in Silver disunity with- Russia, what broadcasts ca, also to create extent his heard were persons as the As far other in individual in the United States does not countries. concerned, appear, particular though he were in one of his broadcasts United States controversies, create up said: “I informed racial am that there has been to build inequalities regarding the economic vast increase in the number Americans unrest minority prob- country, habitually who dial to work on the shortwave ideas, purpose sending similar with the Berlin Radio.” lems and ultimately wedge driving a between Appellant’s Apprehension Germany Administration, people and the Roosevelt possible get election and if a new Return to States. government would elected which a An treason indictment had been earlier against in- which would be United States July 26, Chandler returned European affairs, other terference in the United States District Court for words, char- isolationist in which would be May, 1945, District of Columbia. In short- acter.” ly Europe, after the close hostilities in Further, line, testified: along the same he taken into custody use the commentators were told “The Bavaria, Durach, Army U. S. his home in inflation, collapse of the threat Durach, appar- but was he returned propa- war, a means of dollar after ently custody, released on October line. along unrest ganda, all to create Army 1945. He was rearrested brought up connec- ideas Similar 12, 1946, request on or about March at the propaganda. Commen- defeatist tion Department On Decem- Justice. along the to stress themes told tators were military custody, ber still in America would be able lines never plane was taken to the United war, too that it be much win the Azores, Paris, via and Newfound- Second costly, the establishment land. The intended destination was Wash- strength of owing fail Front would C., ington, *7 where D. aforesaid treason armies, actually had America German against outstanding indictment was him. war, European to in nothing do this. plane The crossed into the United States aims, Gl did that the America had war over the State As a Maine. result of for; fighting what was and not know he plane’s mechanical trouble with the retract- up, that we that were such ideas landing landing gear, able an unscheduled attempt homesickness to create should Field, was made at Westover Massachu- troops among defeatism the American and setts, early morning 14, in the of December they might general as to losses which in 1946. Chandler was there taken from the that these be for suffer losses would and plane, and remained Westover Field for nothing.” hours, spending part about three of the time manuscripts lounge. passengers’ guards in recording His Appellant’s before then military subject plane escorted aboard another broadcasting were to him in which and censorship, political Washington, C., he censorship was flown “to where and D. day same landed on the at Bolling Chandler’s commentaries see Field. Mr. immediately Ger- He there run counter to the was turned over official would not they deputy line, U. S. marshals who waiting but were propaganda for man him, arraigned day and he was general Twelve re- later it in outline.” in follow on broad- indictment the United cordings of Chandler’s Paul Revere old States casts, District Court for the District of made at various dates were Columbia. thereafter, Shortly played into evidence December introduced and was jury. through Woven indictment returned his talks back basic themes German in the United States District were all recordings by District The made Court for the propaganda line. Massachusetts. 31, 1946, he to the and On December was beamed States arrested m him United were by G, ingly a war- pursuant traitorously and committed Washington, D. and to adhere by judge of defendant with treasonable intent rant his issued for removal said enemies. give for the to aid comfort to Court and and the United District States were with- Columbia, by the acts Thirteen of these overt District of he was taken by consideration, de- drawn from some and there marshal to Massachusetts mar- custody United the district into S. States and others U. livered Massachusetts, judge, all to the so that ten were submitted shal the District of for possible General- jury 18U.S. acts of treason. Rev.Stat. accordance arraigned ly described, was these overt acts was one of 591.2 Chandler C.A. § recording, pleaded arranging making January and Boston on for microphone in speaking into guilty. two were broadcast, recording of talks the actual Indictment Summarized. participation in a conference one operation improvement charged of the Short The that the defend- indictment Station, and ant, Wave two were attendance places within German in various participation com- Reich, Decem- beginning on conferences of radio at all times and up received continuing mentators directives were and thereafter at which ber higher authority con- May 8, 1945, and from relative to the including he then to and participation broadcasts, tent being four a native-born citizen of there re- States, securing the person owing in conferences aimed at United and a alle- States, sumption defendant’s giance or continuance of the United violation duty knowingly, broadcasting allegiance, did in- activities. said war, the United States in the conduct of said talks and thereof which work these activities tended to indictment composition controlled Radio of the Short tentionally, particularly, that the him speaker ant and the of the United enemies within emies of the Broadcasting German employees thereof, the Germany *8 Broadcasting Company, United States administration of “consisted the United States and aforesaid announcements, Reich, persuade citizens and residents aforesaid by the German enumerates 23 overt acts al- weaken and subsequent commentator giving included Wave Company States.” to of the defendant “were in- wit, traitorously commentaries, speeches, the adherence of aid and comfort Station giving to the said the Government of States aid enemies of United working the and the officials Paragraph 4 broadcast destroy decline to and the the preparation and German adhere States”; Government, Government and comfort the defend- elsewhere; U. confidence recording company by German support S. zone Radio radio radio more that en- the defendant the propriate weeks. The Government offered the testi- as to defendant’s nesses posed On respect mony ous menced on were made mental fully tried, capacity. him and to stand Prosecutions, sub nom. Rex On June After the defense of preliminary hearing to determine the which “Lord Haw trial. defense, this exhibits. the nature of the called offense capacity Joyce, arraignment, the some appeal instructions, the submitted to aid Various June Joyce on his behalf disposition [1946] thirty by charged testimony rationally court. defense counsel insanity, 6, 1947, sanity. found that he the verdict of the the defendant v. Director of L.T. error witnesses and numer- A.C. 347. preliminary Haw” and resolved proceedings against the did below of the issue an issue jury court conducted jury jury similar the conduct of the seven wit- was convicted. alleged (1945), lasted three all directed returned a trial com- under testify had that was motions against under- Public jury. aff’d dis- ap- given guilty, specially verdict of finding aid and comfort to that each leged to have every know- and one the ten overt sub- the said enemies acts Code, 3041. § Criminal 18 U.S.C.A.
92-9 Casement, mitted supra, to it was “a act com- In held treasonable Rex v. it was by by Appeal mitted the defendant Chandler with the Court Act of betray by intent comprehended United States”. Edw.III treason subject Germany British committed in points We shall first law discuss during Many the first World War. pre- raised in various defendant interpretation authorities cited for liminary motions submitted the district the Constitutional Convention. antedated judge. Holdsworth, Law, History English See Enemy Acts Off Treason Committed Country Nevertheless, there am- verbal Are Punishable. biguity English Act, which lent some On dismiss, appellant a motion to ad- plausibility argument that the ad- point vanced indictment failed realm, King’s herence must be within the to state facts sufficient to constitute an though given the aid and comfort be offense, against because treason this, elsewhere. noted Jefferson States is not committed adherence proposed Virginia revision of the enemy residing one terri- Code, Criminal defini- which contained a tory. ap- is reiterated This contention expressly tion of treason to cover drawn peal, notwithstanding the concession foreign Hurst, treasons. See Treason in appellant’s “(1) that, since brief treason States, 58 Harvard Law Review allegiance, may ais conduct violation (1944). 252-53 consistently with the law of be nations Convention, In the Constitutional against States, made an offense the United reported Committee of Detail a draft on though the acts be without its territorial August 1787, in which treason was de- jurisdiction, (2) language fined, any limitation, without territorial definition constitutional “only consisting levying war enough broad to include acts.” States, any them; or and in It is clear the constitu adhering to the enemies of the United Congress treason, tional definition of of them.” or Committee In power punish Whole, treason committed Randolph abroad. of the pro- Morris and provision drafting posed substitute, reading, with reference “that a man treason, levy agst. framers the Constitution do war U. within S. their n territories, English had much in mind old Treason be adherent to the enemies Hurst, of 25 Act Edw.III. territories, Treason See U. S. within said II, in the United States: 58 Harvard Law them aid giving and comfort their within seq. Review 395 (1945). Though elsewhere, et thereof be territories undoubtedly provably open Constitutional Convention in attainted Peo- deed ple tended to condition, restrict definition adjudged of treason of his shall particulars, guilty in certain the indications are of Treason.” This substitute was compelling Farrand, there was no intention voted down. Records put III, Convention, a territorial limitation the Federal 347-48. Article Constitution, adopted, crime as defined. Act of Edw.III finally had included within the definition trea reads: or be adherent to the against son Norman French [1917] “ * * * realm, giving the 1 K.B. our *9 following (as Lord or 98, 99n.): in Rex if a to them aid and comfort the translated King man King’s Casement, do levy in his enemies in realm, L.R. war the them Testimony be convicted of or consist overt “Treason in Act, Aid and adhering only or on Confession in of against in two Comfort. No levying to their Treason Witnesses the War Enemies, giving unless against Person open to States, the same Court.” them, shall shall (cid:127) the realm, elsewhere, the not inadvertence in be It therefore or and thereof n the open deed definition no probably attainted of the constitutional contains ” * * * condition; phrase either the people of their territorial limitation meditating phrase person is respect unlikely in the It not with to or adherence a beyond the respect com- giving and with to of aid treason would take- himself the States the agree We with the conclusion of territorial limits of the United fort. greater perpetrate their with judge words “within order to the crime district that the treason, territories”, security territories”, The nature of “within the said to himself. priori therefore, elsewhere” no or is such that there is and their territories “within proposed by Congress contained supposing substitute reason Randolph, de- restrict naturally “were omitted be to Morris and inclined draft, liberately statutory treason final the crime from the and definition foreign encompass the United purpose treasons”. within the territorial limits language of F.Supp. connection States. this Chief States v. Taft in United Congress promptly proceeded Justice first The Bowman, 1922, S.Ct. subject power treason. on the exercise pertinent. In that case a April 30, Act The Stat. provision punishing Criminal Code person persons, provided that, any “if or conspiracies to United States defraud owing allegiance United States of applicable to citizens was construed as America, levy against them, or shall war high upon the United or seas enemies, them giving shall adhere their country, though foreign Act contained United States aid comfort within the and * * language * express to the locus elsewhere, person or said, pages at offense. The Court adjudged persons of treason guilty shall be * * page 41: against the United change, language, substantial This without question “We have in this case Rev.Stat. was carried into statutory necessary forward § construction. Code, 35 Stat. into 1 of the Criminal locus, specially depends defined, § not when ed.) is now (1946 18 U.S.C.A. upon purpose Congress as evinced § found 18 U.S.C.A. 2381. description nature of crime upon the territorial limitations similarity striking In view jurisdiction power government definition of between constitutional punish law crime nations. contemporaneously treason, and the almost against their private Crimes individuals or definition, rea statutory the same enacted property, assaults, murder, burglary, like that the the conclusion sons which lead to arson, larceny, robbery, embezzlement and provision encompasses for constitutional kinds, peace frauds of all affect also indicate that the statu eign treasons good community, order of the must com tory language read be similar course be committed within terri- Constitution, prehensive As in the fashion. government jurisdiction torial where statute, limi territorial words of so punishment properly exercise If it. States” are omit “within tation them is extended to include those phrase end with ref from the ted committed outside of the strict territorial enemy; adhering erence Congress jurisdiction, it natural statutory “within the words addition of say statute, so and failure do so end elsewhere” at the the United States negative purpose Congress will giv phrase with reference to the * * * regard. apt ex comfort is ing aid and not interpretation “But the same rule limitation intended territorial pression of applied quite contrary. to criminal indicates, rather, not statutes should but are, class, statutory express logically defini de- words of pendent locality possible govern- on their for the overcome to us to seem tion jurisdiction, but are enacted ment’s because extraterritorial presumption *10 statutes; right government to fur of the defend of criminal application obstruction, pre against or fraud to such itself wher- seems be no there thermore especially perpetrated, a crime this ever if committed sumption reference to of with citizens, officers or by agents. its own denounce crime of States character. only self-preservation. can Some such offenses be matter of committed aas treason
931 any 8 within In of jurisdiction State”. within the territorial committed § 114, April 1790, re- 30, the Act local acts because of the Stat. Government language appeared: such quired Others are to constitute them. strictly “ to that to limit locus their * ** com- and the trial of crimes greatly be jurisdiction territorial high seas, place any mitted or in out scope to and usefulness of curtail the any particular state, jurisdiction large immunity open statute and leave shall be in the district where the offender by easily citizens for as committed frauds apprehended, or first into which he foreign countries high seas and in on,the brought.” be cases, Congress has home. In provision That have itself necessary specific make thought not to enough be clear seemed all-inclusive. provision shall in the law the locus that But it was a clause tacked on to a section foreign countries, high include seas and defining “upon offenses certain committed from the nature but to be allows it inferred high seas, river, haven, or basin of the offense.” bay, or jurisdiction any par- out of the with was cited United States v. Bowman State”, ticular for of- which offenses the Florida, 1941, 313 approval Skiriotes v. pirate adjudged was to be fender “a be 74, 924, 928, 69, 73, U.S. 61 S.Ct. L.Ed. felon”, and sentenced to It death. was 1193, proposition that “a criminal for undoubtedly this context venue directly dealing that statute are with acts quoted clause above which led Chief Justice injurious cap- government, and are remark, parte Bollman, Marshall to Ex regard par- able perpetration without 1807, 554, Cranch that L.Ed. locality, ap- ticular is to be construed provision only apply “is understood plicable up- to citizens the United States seas, high uffences on the committed or country, seas high foreign or in a any river, haven, bay, basin within not though express there be no declaration to jurisdiction any particular state”. that effect.” case, Bollman, whose release on corpus sought, habeas was had ar- been Congress Has Law Directed the Place rested New Orleans General Wilkin- ob Trial ob Treasons Committed charged son and Washington Foreign Country. ain with treason. Orleans then New Objection jurisdiction court Territory within Orleans, there ground below was made on asserted was in existence a district court said Congress has not law directed the territory, 285, 2by 283, established Stat. place of trial of crimes committed within jurisdiction try offense. jurisdiction foreign territorial Court held that Bollman not be could government. Columbia, tried in the District of because III, 2, Article April 30, the venue cl. clause of the Act of the Consti provides tution applicable meant to trials, that all criminal ex those cept impeachment, cases “there cases of where is no court “shall be which has particular cognizance crime, held in the State where the Crimes said committed; therefore, place shall have been but in which criminal when any State, or, apprehended, appre- committed within the Trial shall shall he be Congress be at such Place Places as the juris- where court has hended no exclusive may by diction, Law have directed.”3 The first shall be first Congress power directing exercised the brought, is place substituted place law the “not trial crimes which the offense was committed.” providing relevance, The Sixth Amendment “that prosecutions only in all criminal the accused amendment has reference to offences right shall.enjoy speedy pub- to a committed “by impartial jury trial within lic a State”. Cook v. State district wherein crime shall committed, have been which district shall previously by law”, have been ascertained
932 case, a 252, provision of Act of 76 375. In the the above venue Jones the special had on one murder been committed
April 30,
was
its
lifted
1790,
place
Sea,
changes
phrase-
guano
islands in
Caribbean
context,
some
after
separate
States had asserted
section over which the United
ology
put
itself in
was
Au
jurisdiction pursuant
the Act
Rev.
of 1874.
Revised Statutes
119,
gust 18, 1856, 11
Rev.Stat.
provided:
§§
Stat.
Stat.
§
5570-5578,
1411-1419.
U.S.C.A. §§
up-
of all offenses committed
“The trial
Dis
brought”
was
into
offender
“first
elsewhere,
high seas or
out
on the
Maryland.
It
held
trict
was
any
dis-
jurisdiction
or
particular
State
had
Court
there
United
District
States
of-
trict,
shall be in the district where
try
jurisdiction
under Rev.Stat. §
found,
fender
which he is first
is
into
211, 212, 11 S.Ct.
offender.
U.S.
brought.”
83,
Bow
In United States v.
934
125,
son, 1897,
120,
17
page
S.
167 U.S.
regular course
issued
for
removal
up
735,
103, supra,
42
the Court
1014, 18 Ct.
L.Ed.
authority
Rev.Stat.
the
United States
jurisdiction
the
Appellant’s argu- held the
et.).
(1946
591
U.S.C. §
In
District
the
the Court for
Southern
makes
the
the case
on this branch of
ment
try
under an
stop
Territory
accused
dian
to
assumption,
do not
we
'doubtful
rape, though
indictment for
it was
proceed-
assumed
examine,
these immediate
for
lawful,
United
Commissioner
the
though
be found
ings,
otherwise
Terri
Indian
the Southern District of the
illegality
a result
infected with
issuing,
tory
authority
exceeded his
inquiry into the circumstances
more remote
the
Terri
executing
marshal in
the
within
brought
was
under which Chandler
tory, a
must
of arrest —which
prior
warrant
D.C.,
his arrest un-
Washington,
law of
have been a violation of the
United
indictment. Cf.
der the
up
D.C.W.D.Wash.1924,
Furthermore,
forum.
there are cases
Unverzagt,
States v.
try
Cir., 1925,
holding
power
district court to
5 F.2d
1015,
9
299 F.
affirmed
566,
brought before
1925,
an accused who has been
492,
denied,
U.S.
269
certiorari
procedure laid down
24,
it in violation of the
46
Passing
the
of the
States v. Rau
these difficulties with
laws
latter. United
scher, 1886,
ap
407, 411, 412,
argument,
treaty
its face
no
119
the
on
has
U.S.
7 S.Ct.
plication
pre 234,
Particularly
regards
to the abnormal
here
30 L.Ed.
situation
fugitive
including, pre
sented.
I
political
Article
contains a mutual under
offenders—
taking
parties
treason,
of
sumably, persons charged
Ex
up
deliver
with
requisition
person,
“any
parte
Kentucky
may
who
be
of
Den
Commonwealth
v.
with,
nison,
charged
1868,
66,
or
have
717—it
been convicted
How.
any
of,
specified
general
or
long
practice
crimes
offenses
been the
Treaty
give asylum.
right
Article III
com
is
States to
But the
voluntarily
asy
mitted within
jurisdiction
the territorial
that of
the State
offer
High
Parties,
lum,
Contracting
one
and
fugitive
not that of the
to insist
who shall
found within the territories
asylum
might,
it. An
reasons
State
political
other”.
and other
policy,
fugitive
sections
of
This
surrender a
treaty
only
example,
it
applies
make
clear
to fender—for
a State
choose
who,
appellant,
fugitives
fled
ally
unlike
have
to turn
a wartime
traitor
over to
country
where
crime was commit
given
who
comfort
their
had
aid and
Furthermore,
ted.
treason is
one
such
think
common
we
case
—in
III;-and
immunity
the offenses enumerated Article
that the accused
have no
would
specifically provides
Article IV
prosecution
courts of
de
treaty
import
“shall not
State,
terms
a manding
we know no author
of
claim of extradition
crime or
ity indicating
Ker
contrary.
Cf.
v.
political character,
436,
of a
nor for acts Illinois, 1886,
fense
442,
7 S.Ct.
225,
421;
connected with
crimes
Insull,
such
offenses.”
30 L.Ed.
United States v.
treaty
To
that the
has been vio D.C.N.D.Ill.1934,
310,
establish
F.Supp.
313. One
here, appellant would
have
appreciate
lated
can
the considerations which
treaty
language
show from
ordinarily
make a
State reluctant to
the United States
as give
thereunder
affirmative
to a
assistance
sister State
obligation as follows:
prosecution
sumed a contractual
apprehension
if
citizen
the United
fugitive charged
political
States
with a
offense.
Germany upon
betake himself to
should
But
inapplicable
these
are
considerations
outbreak of
wronged State,
eve
naturally
war
be
Germany,
qualm
States and
scruple against
tween the United
would have
fugitive
war
declared
bringing
if after
traitor to
if
between
trial
lay
two countries the American citizen could
hands on him without breaking
Germany
asylum
qualifi
commit
acts of
faith
State.
should
treason
proposition just
cation on the
against the armed
stated United States
Rauscher,
forces
illustrated
States
those
v.
1886,
234,
and occupy
invade
7 S.Ct.
Allies should
Ger
U.S.
30 L.Ed.
supplant
that,
many,
the defunct
Court held
Government of
where the
under the
Reich,
treaty
powers
and assume the
extradition
terms
between
the German
then, in
sovereignty,
event,
England,
implement
troops
police
state elec-
U.S.C.A. use
federal
Rev.Stat.
[now
ed
§
extradited tions in the
where
person
had been
ex-Confederate states
3192], a
who
particular
power
upon a
the civil
had been reestablished.
country for trial
to this
denouncing
contrast to the criminal
statute
arrested
could not thereafter
offense
treason,
type of
crime of
offense
for a different
to trial
properly pre-
criminal statute which is
opportunity
had a reasonable
until he
applica-
sumed to
extraterritorial
com
have no
country
asylum. See
return to the
statutory language
v.
tion
the absence of
case
Lascelles
ment
Rauscher
contrary
quo-
indicating a
See the
intent.
Georgia,
Bowman, su-
tation from United States
also Innes
549. See
37 L.Ed.
*15
pra.
133,
Particularly, would be
127, 132,
36
unwarrant-
1916,
S.
Tobin,
240 U.S.
v.
bar, ed to
that such a statute was
290,
at
assume
562.
the case
60 L.Ed.
Ct.
applicable
occupied
however,
remotely intended to be
en-
not
situation does
emy
military power
case,
territory,
where the
in the Rauscher
resemble
custody
Congress
up
is in
has not set
control
was not taken into
here Chandler
parte Milligan,
a
Ex
regime. Cf.
pursuant
States
civil
United
returned
281;
2, 141,
1866,
142,
4
18
Unit
treaty
Wall.
L.Ed.
between
extradition
1913,
States,
229 U.S.
MacLeod v. United
Germany.
by our
arrest
His
States and
ed
955,
1260;
416,
Hirabay-
33 S.Ct.
57 L.Ed.
wholly
occupying
outside the
forces
1943,
81,
States,
ashi
320 U.S.
United
any
v.
interna
treaty,
in violation
and not
93,
1375,
1774. The
63 S.Ct.
87 L.Ed.
im
expressed or
undertaking either
tional
up
turning
and all-but-fbr-
of this obscure
treaty.
plied in the
gotten
industry
statute is
credit to the
a
briefly
only
refer
needWe
counsel;
perfectly
but'we know
well that
upon alleged violation
argument based
members
the Armed Forces
who
18, 1878,
Act of
provision of the
of a
June
custody
prosecut-
took
into
were
Chandler
form,
which,
152,
present
in
20
Stat.
under 10 U.S.C.
ed for a criminal offense
15:
follows, 10 U.S.C.A.
reads as
§
15,
surely
A.
fail.
prosecution
such
any
employ
appellant
suggested
“It
not be lawful to
shall
have not
Counsel for
States,
Army
part
as
procedure
their
alternative
which
comitatus,
otherwise,
posse
for the
employed
or
properly
been
view
could have
laws, except
trial;
purpose
executing
fact,
their
bring
all
conclusion,
arguments
such circumstances
which
such cases
involve
employment
unacceptable,
of said force
be we
that there was no
deem
as
by
way in
United
expressly
Constitution
court
authorized
any person
jurisdiction over
by
could obtain
Congress;
or
act
lawful
provisions
to relin-
willfully violating the
of this Chandler
he should choose
unless
asylum Germany
guilty
quish
misde-
shall
and volun-
be deemed
section
tarily
shall
conviction thereof
return to
United States.
and on
meanor
$10,000
exceeding
punished
fine not
years
imprisonment
two
exceeding
not
The
Not Bad
Indictment Was
dob
Duplicity.
imprisonment.
fine and
Pro-
both such
vided,
construed
This section shall
The
court
district
committed
District of Alaska.”
apply
to the
motion to
denying
error in
dismiss
originally
foregoing was
a section
ground
single
The
on the
that its
the indictment
Army Appropriation
duplicitous.
an
Act
inserted into
count was
See Ford United
v.
per-
593,
States, 1927,
602,
of the Reconstruction
backwash
273 U.S.
47 S.Ct.
legisla-
793;
the Civil War.
Its
following
531,
States,
iod
L.Ed.
Crain v. United
71
Lieber,
636,
history,
1896,
625,
952,
forth in
as set
162
16
tive
U.S.
S.Ct.
40 L.
Army
1097;
Aid of the
Civil Pow-
States,
Ed.
Use of
7
Jacobsen
1921,
399, 401,
Cir.,
objective
that the immediate
272 F.
certiorari
er,4 indicates
de
1921,
703,
nied,
an
41
put
was to
end to
S.Ct.
L.
legislation
War Department,
Judge-Advocate
General,
Document No.
Government
Office
Printing Office, form
similar
An indictment in
Ed. 1179.
The Mekits.
States,
upheld
Stephan v. United
points
go
remaining
discussion
denied,
Cir., 1943,
certiorari
133 F.2d
case,
they
involving
heart
L.Ed.
63 S.Ct.
do the nature and elements of the crime
possible
commit sev-
1148. No doubt it is
treason under our constitutional and stat
treason, by unrelat-
distinct offenses of
eral
definition,
sufficiency
utory
giving
ed acts of
aid and comfort
alleged
proved,
in
overt
acts
enemy,
requisite
treasonable
each
quiry
specific
into what constitutes the
indictment,
But
as the
intent.
betray”
ingredient
“intent to
points out, “charges
single
Government
of the offense.
In our consideration
enterprise, namely, adehering
treasonable
matters,
have had
these
borne
w:e
the enemies
work-
of the United States
us
of an
Su
the truth
observation
speaker
ing as a radio
commentator for
preme
Court
Cramer v.
Broadcasting Company,
Radio
German
pages
page
US.. at
and the ten overt acts submitted to the 940,
1441: “The framers’ effort
jury
separate
simply
ap-
ten
acts of
compress
two sentences the
of one
into
law
*16
pellant
in furtherance of his treason
gives
of
intricate of
a
the most
crimes
which show
he gave
that
and comfort
aid
superficial appearance
clarity
of
sim
enemy.'” Acquittal
or conviction
proves
put
plicity
illusory when it
which
would,
under the
indictment
we
practical application. There are few
to
think, clearly
prosecution
be a bar to a
of subjects
temptation
on which the
to utter
Chandler on another
indictment setting
interpretative generalizations is
abstract
enterprise.
forth the same treasonable
and greater
they
more
be
on which
are
to
merely by
varied
allegation
the
of a differ-
packed
The
clause is
distrusted.
little
ent overt
in
act
connection with Chandler’s
difficulty.
controversy
of
The
employment by the German Radio Broad-
subtlety,
easy
to
fense is one
it is
of
casting Company. Furthermore, even if
logic
of
in
lack
almost
demonstrate
the various alleged overt
should tech-
hypothetical cases,
acts
interpretation by
to
nically each have been set
in
sepa-
rarely
forth
a
will conform.”
which real treasons
count,
perceive
appel-
therefore,
rate
we fail
say
to
shall,
try
enough
how
We
rights”
lant’s
us,
“substantial
could
being
have been
without
decide the case before
prejudicially
where,
here,
affected
as
our doubts as to
too much disturbed
overt
single
were all included in
hypothetical
acts
proper
answer to some
count,
jury
required
but the
to make
argument.
advanced
cases
separate special findings as to each overt
the Overt Acts.
(a) Sufficiency of
52(a),
act. Rule
Rules
Federal
of Crimi-
Appellant’s
objection basic
Procedure,
nal
18
Appellant
U.S.C.A.
sufficiency
overt acts in
case
suggests
that the form the
indictment
words,
expression
at bar is
mere
convey to
jury
tended to
the erroneous
opinions
purpose
for the
and ideas
notion that the
crime
treason consists
an
people, cannot
influencing
constitute
by acts;
of mind
state
manifested
treason;
appellant
had
act
overt
required
that if the Government had been
broadcast, or otherwise dissemi
right to
separate count,
each overt act in
state
people, the ideas
to the American
nate
it would have
jury
been clear to the
propaganda
Nazi
coincided with the
treason
giving
consists
overt acts of
line;
preliminary
therefore
his
enemy
speci-
aid
comfort to the
with a
steps
end—his attendance at con
to that
betray.
fic
suggestion
intent to
commentators,
preparation
his
ferences of
confusion
this score seems to us fanci-
into mi
commentaries,
speaking
ful,
judge gave
for the trial
extended and
recordings
crophone
to make
—cannot
explicit
jury
instructions to
as to the
acts.
treasonable
pro-
function of the
overt act
a treason
to be
occasional
secution,
are
statements
opinion
There
quoting from the
to the effect that mere
States,
books
1, found
Cramer v. United
U.S.
an
overt act
amount
words cannot
65 S.Ct.
L.Ed. 1441.
Nelson,
work,
things
in a tial
other
Thus,
hundred
Mr.
treason.
Justice
impair
reported in
Jury
our cohesion and
To
Grand
diminish
Charge
18,271
strength
No.
our
if
no adherence
page
there is
Fed.Cas.
—but
oral,
this,
“Words
there
intent
(C.C.S.D.N.Y.1861),
said:
is no
treasonable,
betray,
printed,
no treason.”
however
there is
written or
[Italics
themselves,
do
or criminal
seditious
added.]
treason, within
act of
constitute
overt
possible
have
We
not overlooked a
con
In Wimmer
the crime.”
the definition of
stitutional
limitation
treason prosecu
Cir.,
States,
F.
v. United
tions for
making
speeches.
of critical
well
12, 13,
settled
court said: “It
right
“We do not
our
ei
lose
condemn
words,
guilty
cannot, by
that one
mere
country
ther
because the
measures
men
v.
also United States
of treason.”
See
States, 1919,
is at
war.” Frohwerk United
D.C.E.D.Pa.1918, 247
Werner,
F.
204, 208,
L.
ut-
sense
the mere
That is true'in
allegiance
Ed. 561. Chandler owed
disloyal
is not trea-
sentiments
terance
political
entity the
not to
¡be
son;
given to
and comfort must
aid
party
person
President nor
of an
enemy.
the communication
But
power
being.
time
The framers
writing,
is as
idea,
by speech or
whether
Constitution,
drafting
re
brick, though
throwing
act
much an
clause,
language
strictive
treason
dif-
achieve
used to
are
different muscles
apparently
had
mind to eliminate
treason
One
commit
effects.
ferent
prosecutions
historic misuse of treason
intelligence
military
conveying
oppressive
po
instrument
domestic
*17
only
act
is the
though
overt
enemy,
the
faction,
study
litical
in the
as indicated
may read-
Other cases
speaking of words.
in
“Treason
the United States” Willard
of
imagined
speaking
ily
the
be
where
in 58
412 (1945)
Hurst
:
Harv.L.Rev.
Thus,
treason.
words
constitute
'
is suggested
“What
that
the
is
historic
country,
agent
in this
suppose
enemy
an
scope
policy restrictive of
of
the
‘treason’
to defeat the
assigned
mission
whose
under the Constitution was most conscious-
proj-
of a scientific research
consummation
ly
fear
based
the
of extension of the
effort,
war
importance to the
of
ect
vital
penalize types
offense to
of conduct fami-
distinguished Amer-
and seduced a
bribed
processes
struggle
liar in the normal
scientist,
project,
in the
a consultant
ican
political
for
power.
domestic
or economic
pro-
opinion
the work was
to
that
give
provisions
The sale of
to an
in war-
and to
ceeding
wrong
suggest
on the
lines
time,
conveying
or the
intelligence
the
procedures which he knew would lead
him,
proffer
or the
of counsel and assist-
alley: We
project down
blind
take
a
agents,
types
to his
ance
are
conduct
case
be
in such a
could
the scientist
that
quite distinct from activities of a sort to
treason,
deliberately giv-
for
convicted
political opponents
which
or economic
steps
enemy agent in
essen-
ing
the
aid to
normally
groups
in
resort
would
their ef-
mis-
of his hostile
the consummation
tial to
public policy.
forts to influence
is
There
only
though
overt acts were ex-
sion,
the
danger
charges
could,
type
less
opinions.
purported
scientific
pressing
sharply
in
view
the
defined character
so
significant
thing
not
much the
The
question,
in
sup-
conduct
he
gives
in
the
used to
act which
fact
aid
the
character
press
competition
enemy,
free
for the power
the
but
the
whether
and comfort
policies
republic.”
betray.
direct
with
intent
act
is done
States, supra, 325 U.S.
v. United
Cramer
citizen,
Thus, a
in the exercise of his
932, 89
page
at
L.Ed.
65 S.Ct.
page
at
political
rights
ordinary
may intemper-
—
said:
Court
pleases
ately
President
—criticize
hand,
country
war,
may
getting
up
a citizen
for
into
hold
other
take
“On the
bungling
incompetence
aid and comfort
ridicule
do
the en-
actions which
speech critical
our
and military
with which
civilian
lead-
emy making
gov-
—
measures,
war,
conducting the
profit-
express
are
opposing
or
ers
ernment
plants
possibly
striking
war,
in
that we cannot
win
eering,
defense
essen- view
already
said
What we
have
is to vote
to do
thing
that the
answer
perhaps
negotiate a
sufficient to indicate
will
administration
new
argument
appellant,
and to a related
peace
obtainable
on the best terms
treason, they
“If
must
words
be acts of
disaster.
can
greater
country from
save the
of ‘clear and
our coun at
meet the test
may
weaken
speech
tend
le.ast
danger’
cases”
by inducing divided
iti the sedition
established
try in
effort
its war
defeatism,
Amendment.
as a deduction from the First
spirit of
and a
counsels
enemy,
Trafficking
in whatever
may
and comfort
be of aid
that sense
indeed,
form, wholly
the.
Such,
'might be the
shelter of
enemy.
outside
Congress may make
But
it be assumed First Amendment.
speaker’s purpose.
supposed
any
en
type
dealing
with the
case
utterance
criminal
emy
'may
treason,
speak
judgment
in its
whatever the
have
be
would not
potentiality
immunity
be af
our national inter
would
harm to
purpose,
er’s
ests,
ef
forded,
encourage
including
treasonable
as a commentator on
acting
not
enemy’s
enemy’s
but
triumph,
in the
short wave station. Convic
forts
aid
ac
that,
the normal
tion could be had under
a criminal
in the course of
such
order
expres
prohibited acts,
opposition, the
political
statute whether
not the
tivities of
particular case,
con
actually
sincere
of honest criticism
created
sion
country
present danger
what is best
clear and
as to
substantial
viction
jury’s
fear
fettered
harm to the United
not
States.
passion
finding
purpose
traitorous
concluding
portion
subsequent prosecution
tumult of
provides:
treason clause
“No Person shall
Assuming
the utterances
treason.
be convicted of Treason unless on the Tes
treason,
supposed
not
case
timony
two Witnesses to
overt
same
punished
sedition,
they might still be
Act,
open
or on
Confession
As
Court.”
requirement of the First
subject
case,
observed in
the Cramer
at
that the utterances must be
Amendment
pages
page
such a nature
and of
circumstances
“as
grounds
1441: “It is
difficult to find
present danger
a clear and
to create
quarrel
which to
with this constitu
*18
they
bring about
substantive
will
evils
Perhaps
provision.
tional
the framers
prevent.
right to
It
Congress
a
that
has
placed rather more reliance on direct testi
proximity
degree.”
question of
psychol
modern
mony than
researches
States, 1919, 249
Schenck v.
it
be
ogy
may
warrant. Or
that
considered
.
470
S.Ct.
quantitative
proof,
such a
measure
such
of
however,
calibration of
case,
mechanical
evidence is a
In the
it
protection
at best or that
crude device
did
that what Chandler
was
cannot be said
of
is too fortuitous to warrant
right
speech
merely
innocence
exercising
free
so
obstacle to conviction.”
politi
unselective
processes
normal
of domestic
be,
may
salutary purpose
However
opposition.
He trafficked with
en
cal
evidentiary
obstacle
paid
was mini
agent
their
this
emy and as
collaborated
danger
convicting
mize
the innocent.
psycho
program
the execution of
nature of the crime is
by
prose
such
designed
enemy
logical warfare
thought likely
cutions
treason
power of the United States to
weaken the
atmosphere,
virulent
be conducted
successfully.
have found no
wage war
We
prone
facts
too
the triers
all
part
on the
of a reluctance
indication
infer the commission of
overt
punish
act
of the Constitution to
the framers
only
circumstantial evidence. Not
was di
any
allegiance
breach of
as treason
involv
testimony required,
rect
but direct
testi
enemy,
dealings
pro
with the
ing actual
witnesses,
they
to be
mony of two
had
by
is established
vided the case
re
to the same overt
“two Witnesses
Act”.
quired
proof.
two-witness
applied
must
The two-witness rule
be
preposterous to talk
It
about freedom
underlying policy.
light of its
connection;
speech in
the case
up
great
into
charged
cannot be blown
issue
the overt act
Sometimes
act,
may
single
civil
isolated
such
liberties.
be a
dis-
plans
agent.
closure
enemy
prepared
of battle
to- an
signed
he
by Chandler after
In such
proved
case the overt act must be
country,
back to this
by
testimony
the direct
of two witnesses statement was received in
with-
evidence
who heard the
objection,
conversation between
out
story
he
his em-
tells
Sometimes,
accused
enemy agent.
and the
ployment
aas
commentator on
short
bar,
may
the case at
station,
treason
con
protests
wave
though of course he
sist of a
single
course of
in a
conduct
by pa-
all he did
he
actuated
enterprise.
Haupt
treasonable
v. Unit
triotic motives.
States, 1947,
631, 640,
ed
It
by
has been assumed
the Government
91 L.Ed.
Court said:
that the
required
rule
pros-
two-witness
testify
"And
two witnesses must
while
ecution to break down the continuous
act,
required
same
is not
that their
separate
course of
epi-
conduct into its
testimony
identical.
overt acts
be
Most
sodic
produce
and to
elements
two wit-
separable
single,
acts,
not
are
but are com-
instance,
nesses
the same element—for
binations
or courses
conduct
acts
two
they
witnesses who
testify
could
n made
up
easy
several elements. It is not
saw
heard
recording
Chandler make a
by
permissible
particular
set metes and bounds the
on a
occasion. For
identified
testimony
latitude between the
of the two
suggested
reasons
above,
bearing
required witnesses.”
underlying
in mind the
policy sought
[Italics
added.]
con-,
rule,
served
we
two-witness
are
May
treasonable
“course
requirement
exacting
sure that the
was as
direct
duct” be established
testi-
supposed.
as the Government has
Two-
witnesses,
mony
though
two more
proof
witness
that Chandler
a re-
made
testify
same
two witnesses
could
cording on an identified occasion does not
element of the course of
?
atomized
conduct
already,
render
more convincing the
We
no doubt that treason
have
indubitable
support
case in
general-
predicated
collaboration
anas
charge
ized
in the indictment
“the
agent
program
execution
defendant,
aforesaid adherence of said
psychological
beamed
warfare
to the Unit-
Douglas Chandler,
giving
and the
of aid
enemy’s
over the
short wave
ed States
him
comfort
aforesaid ene-
so,
being
That
radio.
the case
period
mies of the United
during
been established
the most
working
aforesaid consisted of
radio
as a
proof.
satisfactory
overwhelming
speaker and commentator in the U.S.A.
possibility
There is no
that he has been
Zone of the short wave .station of
Ger-
something
did
he
not do. The
convicted
man Radio Broadcasting Company, a com-
employment
contracts of
execut-
*19
pany
by the
controlled
German Govern-
two,
are
Not
but half
ed
in evidence.
a
ment, which work
preparation
included the
or more witnesses testified of their
dozen
composition
commentaries, speech-
and
of
day-
personal knowledge
his
continuous
es,
announcements,
and
talks
re-
by-day participation in
of
the work
cording
subsequent
thereof for
broadcast
at
short wave station—attendance
confer-
by
Germany
radio
cur-
ences to receive directives as to the
proof
States”.
frag-
Two-witness
of the
line,
propaganda
preparation
rent
mented elements of Chandler’s course of
regular
for
Paul Revere
manuscripts
his
only
prosecu-
conduct
a burden to
adds
broadcasts, and the submission of them
empty
tion
the nature of an
technicality.
censorship,
subsequently for
collaboration
employees
occasionally with other
assume,
But
.shall
we
without de
preparation
ciding,
station in the
that that
short wave
burden did rest
jointly, prosecution.
special programs
be broadcast
It then
necessary
becomes
recordings
subsequent
making
examine the ten
overt acts submitted to the
broadcasts,
authenticity
jury,
The
light
etc.
of the
in the
of the
statement
sample
recordings
case,
Revere
in-
34,
twelve
Paul
Cramer
page
U.S. at
65 S.Ct.
evidence was
page
into
at
troduced
established
very
that “The
competent
testimony, and is not chal- minimum function
an
overt act must
lenged by
In
perform
prosecution
a
in a
defendant.
statement
treason
is that it
accused,
regular
broadcasts,
and an
shows sufficient action
Paul
Revere
pro
special
the ac- other
setting,
finding
recording
its
to sustain
a
mixed
a
gram
actually
cused
to the
gave
poetry
aid and comfort
The evidence
and music.
enemy.”
making
overt act
showed the
dialogue recording by
and one
Chandler
acts,
Possibly the
viewed
overt
Sittler,
employed
who was
as a translator
rigid
setting,
apart
isolation
from their
U.S.A.
Zone.
they
would not indicate that
afforded aid
enemy
It is immaterial that the
enemy.
comfort
But viewed
whole,
as a
mission
defendant as
which
setting,
their
which
set forth above un
sisted, did
purpose.
not achieve
Summary, they
der
heading
Factual
y.
Haupt
States, supra,
one
certainly
incriminating signifi
take on
overt
accompanying
acts
relied
They
typical
appear
then
as
routine
cance.
enemy
known
saboteur to the house of the
activities
fulfillment
Chandler
superintendent
optical
company
purpose
employment
of his continuous
as
purpose
assisting
the saboteur to ob
Propa
radio commentator for the German
employment
tain
step
fulfill
in the
years.
ganda
period
Ministry
over
three
Cir.,
ment of his hostile mission. See 7
enemy’s
The
par
mission
pages
F.2d
at
It did not
ticipated
objective
forwarding
—the
appear
actually
obtained
saboteur
the.
the German
program
Short Wave radio
employment.
apprehend
desired
He was
appears
beamed to the United States—also
aed
short time thereafter
his
whole
part
setting.
It was
obvious ad
mission
Yet
overt
frustrated.
act was
vantage
enemy
in the execution of
deemed sufficient. The act “aided an en
program
open
to have the
assistance of
emy of the United States toward accom
a cultivated
widely
traveled American
plishing
sabotage.
his mission of
mis
citizen like Chandler.5
enemy
That
sion was frustrated but
did
defendant
(cid:127)
deemed Chandler’s services to be of aid
best to
page
make it succeed.” 330
comfort is
high salary
attested
page
that is ceptive propagandist performance insinuation of the prising, since a routine to it was by hired was repeated Though or three ideas.7 Chandler two Chandler “commentator”, also enemy he was period of the as a week during the whole times program parts the the other employment. the fitted into his But does two-witness superiors from time as require the seemed to his negative rule the to useful witnesses to hypothesis, he conceived time. highly person, on by imaginative that necessary to refer is not It particular called on that occasion Chandler the other overt detail the evidence on to people ef- the American to redouble their jury jury. to the -Since the acts submitted peoples freedom-loving forts to rescue the of the special findings to each returned as tyr- Europe Hitler’s monstrous from was “a that it acts, effect overt anny? making indeed That would be by defendant the act committed treasonable joke As stated business. whole betray the an intent to Chandler Haupt page United States”, any one enough it 1145, page 67 S.Ct. at acts, setting, in its warranted the overt .a required testimony that be “it is not so actually gave aid finding that the accused hy- every as fantastic minute to exclude enemy. Haupt v. See and comfort
pothesis suggested.” The can be than States, 1947, 641 n. . Paul Revere re- making overt act 91 L.Ed. 1145 witnesses; by two cording was attested illumined Betray. Intent incriminating character was (b) case, by by other evidence appellant’s Finally, ar we come to done.6 It was setting in which the act was betray”. the “intent to gument relating to by participating act to be a perceived thus constitu appear not This phrase does psychological in with the Chandler meshed crime, statutory definition tional or being the German warfare conducted concept adher but is deduced Short Wave Station. enemy. to the ene Adherence ence to the consequence if, comfort my giving act aid and be of an overt Nor would it enemy to make a particular recording to under must be testified both disloyal Harboring law. confined his talk to act Chandler treason under our overt poetry. enough. The ex topics reading is not mere sentiments or to cultural supe- disloyal pression of not programs devised his sentiments radio The news, giving must act enough. There overt elements be contained balanced riors may give Of one commentary, course and entertainment. aid comfort. music ap- without an necessary, aid and comfort well This betray, in- inno- intent to where a citizen gain “in listener order preciated, Haupt ease, pating program reading poetry. the two witnesses memorandum main stated that act which to them The purpose to an overt testified program namely, “naturally entirely innocent, that opposing accompanied not entertainment son defendant through employer troops prospective them fur- but influence house by arousing employment. propaganda”, doubt, application home- the son’s ther sickness, future, fear a be- treasonable This act was shown to fighting case, lief States is that other evidence one wrong indicating knowledge son, side. memorandum stated program arranged enemy agent father, must so was an bent propaganda sabotage. it “does ‘stink’ of a mission of automatically Wagner extent such an testified that witness antagonism”; among part arouses *21 1942 he discussed with latter the things plenty Wagner program it other should contain which was a Chandler good music, songs popular devising sentimental for a to be series of broadcasts good time, troops time and “from to standard in North American to the directed poetry Tennyson, (Whitman, proposed American He embodied the later Africa. Kipling) memorandum, on selected the basis to program even a he in homesickness the desire for and to Chandler stated arouse Chandler. showed peace”. partici- interested would be that he stated knowing charge We think the above cently enemy agent not assists an accuracy. law the sufficient such. suspecting or him to be is argument treason a branch is made that point on this main Appellant’s dependent motives; upon an the actor’s judge made crime the case that the district that jury “intent” and the been told that should have distinction between erroneous fol- found have the defendant not be to charge jury, to the could “motive” his betray” they to if believed had an “intent lows : upon patriotic he motives that acted from treason, law of like the “In law of was that what did sincere conviction he to crimes, every person is assumed lesser' United States. for the best interests consequences that he intend the natural conten- Appellant surely wrong in that his acts. himself knows will result tion. case, And, find defendant you if this voluntary place, or act consider the a In first subtle committed Chandler imposed upon jury actually comfort gave aid and task which would acts be inquiry Appellant in his had enemy time and an of that kind. that brief, become, “fanatically knew, knowl- in his or with his as stated he circumstances part the natural edge to that anti-Semitic”. What did factor had reason know this pro- play be that aid Man a consequence his would his motivation? has act enemy pensity self-deceptive to rationalization to would result comfort deep justify which, the United to conduct the conduct of war himself finding down, proceeds be warranted from motives he would be you would acknowledge. them- Did of the acts reluctant to Chandler from the commission carefully inquire supposed and com- give he to aid into the facts selves that intended Germany, opinions to ad- he intended which his intense views fort to evidence, enemy, weighing did he intended were based ? In here to the betray country and it and he make a conscious effort to discount strike at his own distorting prejudices, might his motive have influence of be- his the fact enemy is no defense. ? arriving been aid fore at his conclusions Whether person did, do an act “sincere” in a cannot Chandler was he other words what patriot, aid give will and comfort whether he had the heart of which he knows attempt to disclaim enemy then a matter that out sifted at the last by saying Seat; knowledge Judgment intent and Great but law of criminal enemy. was not to aid motive is concerned with more one’s treason matters immediate. trial, you if this find that “In the case Furthermore, voluntarily performed appellant’s argument an act or if
defendant
h,e
sound,
give
knew
aid and
would
this
acts which
connection
applicable
country
to a
or its
or course be
whatever
comfort
citizens
him be enemies of the
agents known to
character of
overt acts of aid and com-
enemy. Suppose
that he intended
so
States and
fort
had
enemy
injure
the obtained advance
assist
information
the An-
doing to
country,
plans
betray
glo-American
his own
invasion
States
consequences
passed
his
avoid the
North Africa and
he cannot
had
the informa-
enemy.
by asserting that his motive was not
tion on to the
act
Would a treason
prosecution
but
save
fail if he
desire
could
convince the
aid
that,
jury
world from a
fanatical
perhaps
his
mis-
obey
menace,
guided way,
or to
sincerely
or Bolshevist
believed his
Jewish
personnel
change
call,
country
wrong
war;
our
side of
sincerely
gain.
for financial
government,
country’s
or a desire
that he
believed
ul-
his
negative
betray,
good
t>y
an intent to
would be
cannot
timate
served
early
Motive
war;
in-
you
had such an
find the defendant
withdrawal from
that he sincere-
best,
person
ly
perhaps
only,
intent
tent.
believed
Where
accomplish
way
result which the law
bring
good
seeks
about
end was to
bring
major
is immaterial.”
prevent,
motive
it about that the first
military
*22
testimony.
that the
operation
should be rect
If
were to hold
we
United
disloyal
must be
fiasco, thereby stimulating
intention
resounding
treacherous
peo- proved by
testimony of
wit-
two
the American
the direct
among
a revulsion
nesses,
it is never
ple
would
it would be to hold that
perfidious
that the
administration
provable.
negotiate peace?
hard-
that adherence
It
It
obvious
be forced
is
seems
disloyal
ly
enemy,
to that
to the
sense
state the
necessary to
answer
be,
mind,
not re-
question.
cannot
state
be,
of two
quired
proved by deposition
out,
citizen’s
war breaks
When
witnesses.”
obligation
allegiance puts
limits
definite
intent,
prosecution
private
On the issue of
on
his freedom
act
his
jury
all
enemy
have the
consider
was entitled to
judgment.
If
trafficks with
he
ordinary
such,
under the
the evidence admissible
knowing
agents,
them to be
be
having
bear-
verity
a rational
mission inten sanctions
ing
their hostile
aware of
mind—
ing
steps
on
Chandler’s
tionally
essential to
what was
gives them aid
mission,
necessarily
is matter of inference.
has ad
of that
he
the execution
did,
also what
country,
This includes what
giving
he
to the enemies of
hered
clearly
admis-
comfort,
evidence
within
defini he said. The
our
them aid and
Haupt
purpose
v.
treason,
for the
sible
stated.
guilty
He is
tion of treason.
States,
page
supra,
in Cramer
at
As stated
whatever his motive.
United
States,
page
We
page
325 U.S.
65 S. 67
many period in- during the stated in the
dictment, full, government to his owed
complete, allegiance.” true present problem case involves no performed of aid and comfort
acts
enemy duress. was not under
enemy compulsion; upon contrary employment sought who
was he with present
Short Wave Station. Nor does the
case necessitate detailed examination citizen, caught
as to how far an American enemy country an at the outbreak war, may, living order to earn treason, accept stigma of em-
without the
ployment days in these of total war conceivably be of some aid Here, as war elsewhere effort. law, ques- there troublesome say enough of degree.
tions It is clear- opinion our case falls
ly on the treasonable side line.
Our conclusion on the whole case
appellant had full fair trial competent jurisdiction, every
court of entitled;
safeguard to which he was law guilty war-
that the verdict of well evidence; ranted that there proceedings. in the error judgment is affirmed..
O’Melveny Myers, & Pierce Works and Potter, Rodney K. Angeles, Cal., all Los appellant. Bruington Walter L. Ralph C. Bar- row, Hills, Beverly Cal., both appel- lee. STEPHENS, BONE, ORR, Before TOOL CO. R. v. FAYETTE
PLOMB Judges. Circuit PLUMB, Inc. No. 12101. STEPHENS, Judge. Circuit Appeals United States Court parties to Both the above case are manu- Circuit. Ninth tools, plaintiff facturers of and the Jan. enjoin in the action district court
defendant certain uses of the word making “Plomb” and marketing of litigation tools. The resulted in a being decree made and consent entered against defendant under and out of which injunction was decreed in which de- enjoined from fendant was certain defined word “Plomb.” uses